Black Construction Corp

Plain-English summary

Black Construction employees installed formwork beside sewer lines in a trench at Camp Watkins Road in Guam. An inspector measured the excavation at about six feet deep and saw two employees inside without a ladder or other safe means of egress. The judge credited the inspector's unrebutted testimony and photographs, rejected the suggestion that a notch in the wall was a safe ramp, and affirmed the serious egress violation with a $1,500 penalty. He vacated the separate loose-rock-or-soil item because OSHA did not prove that loose material existed or could fall or roll from the excavation face. The inspector had not seen loose material and did not believe the excavation required shoring or sloping for cave-in protection.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.650(a); 29 C.F.R. § 1926.651(c)(2); 29 C.F.R. § 1926.651(j)(1); 29 C.F.R. § 1926.652
• Outcome: Mixed. The trench-egress item was affirmed as serious with a $1,500 penalty, and the loose-rock-or-soil item was vacated.
• Key point: OSHA can prove missing trench egress through credible unrebutted observations, but a standard triggered by a specific loose-material hazard requires evidence that the hazard actually existed.

Full text (OSHRC public release)

                                                            |
SECRETARY OF LABOR,                                         |
     Complainant,                                           |
                                                            |
          v.                                                |
                                                            |                OSHRC DOCKET
BLACK CONSTRUCTION CORPORATION                              |                NO. 99-0512
  and its successors,                                       |
       Respondent.                                          |
                                                            |


APPEARANCES:

                         Madeleine T. Le, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

                         Jehan ’Ad G. Martinez, Esq., Thomas C. Moody, Esq., Klemm, Blair, Sterling & Johnson,
                           Agana, Guam


Before:                  Administrative Law Judge Robert A. Yetman


                                        DECISION AND ORDER


          This proceeding arises under 10 of the Occupational Safety and Health Act of 1970, 29
U.S.C. 651, et seq. (the "Act") to review a citation issued by the Secretary of Labor pursuant to
 9(a) of the Act and a proposed assessment of penalty issued pursuant to 10(a) of the Act.
          Respondent, Black Construction Corporation, at all times relevant to this action maintained
a place of business at Guam Main Facility and was engaged in the construction business
(Respondent’s answer). Respondent does not dispute the jurisdictional allegations contained in the
complaint (Respondent’s Prehearing Statement).




          On February 25, 1999 Respondent was issued one serious citation alleging two violations
with a total proposed penalty of $4,000.00. The citation was the result of a January 21, 1999
inspection of Respondent’s worksite located at Camp Watkins Road, Tamuning, Guam.
Citation 1, item 1
29 CFR 1926.651(c)(2): A stairway, ladder, ramp or other safe means of egress was not located in
trench excavations that were 4 feet (1.22m) or more in depth so as to require no more than 25 feet
(7.62m) of lateral travel for employees:

         (a)      Camp Watkins Road: Employees were inside a trench excavation and were not
                  provide (sic) with a ladder inside the excavation. Employees were exposed to
                  caveins.

         On January 21, 1999, Respondent’s employees were installing form work alongside two
parallel sewer lines in an excavation (Exh. C-1). Mr. Anthony Santos, a compliance officer
employed by the government of Guam and authorized to conduct inspections under the Act pursuant
to an agreement between the United States and the government of Guam, (Tr. 7) arrived at the
worksite and observed two of Respondent’s employees in the excavation (Tr. 11,45). One of the
employees, Mr. Baltra, identified himself as the person in charge of the worksite (Tr. 10,11) and the
other person was identified as a carpenter (Tr. 45). Mr. Santos measured the excavation and
determined that it was 25 feet long, 13 feet wide and 6 feet deep at its deepest point. Santos
established these dimensions by use of a "telescopic measuring device" (Tr. 17,18). A ladder was
observed lying at the edge of the excavation (Exh. C-1), however, no ladder was in the trench.
When asked whether he observed either of the employees exit the trench, Mr. Santos stated that he
did not (Tr. 19); however, he later testified that he observed the carpenter leave the trench by
climbing "over the excavation" (Tr. 45). Santos also stated that there was "no such thing as a ramp
inside the excavation. I didn’t see one"1 (Tr. 46). See also Complainant’s Exh. C-1.


         In order to establish that Respondent failed to comply with the aforesaid standard, the
Secretary must prove that (1) the standard applied, (2) the employer failed to comply with the terms
of the standard, (3) employees had access to the cited conditions and (4) the Respondent knew, or


1

           For purposes of excavations "ramp" is defined at 1926.650(a) as "an inclined walking or working
surface that is used to gain access to one point from another, and is constructed from earth or from structural
materials such as steel or wood."
with the exercise of reasonable diligence, could have known of the violative conditions, Astra
Pharmaceutical Products, Inc. 1981 CCH OSHC              25,578, aff’d 681 F.2d 69 (1st Cir 1982);
Secretary of Labor v. Gary Concrete Products, 15 BNA OSHC 1051, 1052, 1991 OSHD 29,344
(1991) Carlisle Equip. Co., v. Secretary of Labor 24 F.3d 790 (1994).
       The evidence establishes, without contradiction, that the excavation was in excess of four feet
in depth. Whether the trench had a safe means of egress is a disputed fact. The Secretary relies upon
the testimony of the compliance officer regarding his observations of the worksite and his conclusion
that the excavation did not contain a stairway, ladder, ramp or other safe means of egress. The
photographs entered into evidence by Complainant supports the compliance officer’s conclusions.
See (Exh. C-1,C-2,C-3 and C-4). Thus, Complainant has placed on the record the necessary
elements to sustain the violation.
       Respondent, on the other hand, attempted to establish, through compliance officer Santos,
that a "notch" in the excavation wall (see Exh. C-1) was, in fact, a ramp designed to provide a safe
exit from the trench. Mr. Santos, however, denied that the so-called notch was a ramp or a safe
means of exit from the trench (Tr. 46). Based upon the record in this case, it is clear that Respondent
has failed to establish, through the testimony of Mr. Santos, that a stairway, ladder, ramp or other
safe means of egress was located in the excavation as required by the standard. Moreover,
Respondent declined to call any witnesses regarding this item.
       Thus, there is a sufficient basis in the record for concluding that the facts asserted by
Complainant are more probably true than false. See, Ultimate Distrib. Systems, Inc. 10 BNA OSHC
1569,1570 (1982). I am compelled to reach this conclusion because of Respondent’s failure to shed
any light on the conditions at the worksite or the activities of the employees involved at the time of
the inspection.
       As stated by the First Circuit Court of Appeals in Astra Pharmaceutical Products Inc. 681
F.2d at 74:


               While the Secretary had the burden of proving its case by substantial
       evidence, what constitutes substantial evidence varies with the circumstances. The
       "evidence a reasonable mind might accept as adequate to support a conclusion" is
       surely less in a case like this is where it stands entirely unrebutted in the record by a
       party having full possession of all the facts, than in a case where there is contrary
       evidence to detract from its weight. See, e.g., Noranda Aluminum, Inc. v. OSHRC,
       593 F.2d 811, 814 & n.5 (8th Cir. 1979) (decision to leave Secretary’s case
        unrebutted "a legitimate but always dangerous defense tactic in litigation");
        Stephenson Enterprises, Inc. v. Marshall, 578 F.2d 1021, 1026 (5th Cir. 1978).
        Thus, thin as the underlying evidence was, we find it sufficient in these
        circumstances.

        Since the Secretary has established a prima facie case by creditable evidence regarding this
item, and Respondent has failed to provide any evidence to rebut the Secretary’s case, the violation
is affirmed. Moreover, the compliance officer stated that employees in the trench would likely
sustain "high severity" injuries such as lacerations (Tr. 24). Accordingly, the violation is a "serious"
violation within the meaning of the Act. In view of the high gravity factor, that is, the severity of
injury and the likelihood of an injury, the proposed penalty in the amount of $1,500.00 is assessed
for the violation.
Citation 1, Item 2
29 CFR 1926.651(j)(1): Adequate protection was not provided to protect employees from loose rock
or soil that could pose a hazard by falling or rolling from an excavation face:

        (a)     Camp Watkins Road: Employees were exposed in a trench 6 feet deep and
                were not provided with trench shields to protection (sic) employees from
                cave-ins.

With this alleged violation, the Secretary is seeking to force Respondent to protect its employees
from loose rock or soil that pose a hazard by falling or rolling from an excavation face.
        The cited standard reads as follows:
        (j)     Protection of employees from loose rock or soil. (1) Adequate protection
        shall be provided to protect employees from loose rock or soil that could pose a
        hazard by falling or rolling from an excavation face. Such protection shall consist
        of scaling to remove loose material; installation of protective barricades at intervals
        as necessary on the face to stop and contain falling material; or other means that
        provide equivalent protection.


Most occupational safety and health standards include requirements or prohibitions which, by their
terms, must be observed whenever specified conditions, practices or procedures are encountered.
These standards are predicated on the existence of a hazard when their terms are not met. Therefore,
the Secretary is not required to prove that noncompliance with these standards creates a hazard in
order to establish a violation. Austin Bridge Company, 7 BNA OSHC 1761, 1979 CCH OSHD
 23,935 (76-93, 1979). Certain standards, however, contain requirements or prohibitions which,
by their terms, need only be observed when employees are exposed to a hazard described generally
in the standard. See, Rockwell International Corporation, 9 BNA OSHC 1092, 1980 CCH OSHD
 24,979 (No. 12470, 1980) [in order for the Secretary to prove a violation of 1910.212(a)(3)(ii),
she must establish that the operation of the machine exposed employees to injury]; Pratt & Whitney
Aircraft v. Donovan and OSAHRC, 715 F.2d (2nd Cir. 1983)).                  [To show violation of
 1910.94(d)(7)(iii) Secretary must show that substances cited, either alone or in combination, pose
significant fire, explosion or chemical reaction hazard]. Section 1926.651(j)(1), the standard cited
here, is of the latter type. By its own terms, the standard requires that employees must be protected
from being struck by rocks or soil "that could pose a hazard by falling or rolling from an excavation
face." It is the Secretary’s burden to establish that said hazard existed at the worksite and
Respondent’s employees were exposed to that hazard. Based upon the record in this matter, the
Secretary has failed to meet that burden.
       The only witness who testified, compliance officer Santos, stated that the excavation did not
present a hazard to employees that required shoring or sloping of the trench walls (Tr. 61). (The
Secretary declined to cite Respondent for failing to shore or slope the excavation walls pursuant to
 1926.652). Thus, the compliance officer, after viewing the worksite, did not believe that employees
were exposed to a "substantial likelihood" of serious injury or death in the absence of shoring or
sloping the walls of the excavation (Tr.61). Moreover, Santos did not observe any spillage or loose
rocks falling from the trench walls, notwithstanding the fact that automobile and truck traffic
traveled in close proximity to the trench wall (Tr. 56,57, Exh. C-2). Furthermore, compliance officer
Santos did not know how far a spoils pile had been placed from the trench nor did he know whether
the trench walls had been "scaled" to eliminate loose rocks (Tr. 58,59,60). Indeed, the Secretary has
failed to establish that loose rocks or soil existed or potentially existed at the worksite. For these
reasons, the citation item must be vacated.
                                            Findings of Fact
All findings of fact relevant and necessary to a determination of the contested issues have been made
above. Fed.R.Civ.P. 52(a). All proposed findings of fact and conclusions of law inconsistent with
this decision are denied.


                                               ORDER
       1.      Serious Citation 1, item 1 alleging a violation of 29 CFR 1926.651(c)(2) is
               AFFIRMED and a penalty in the amount of $1,500.00 is ASSESSED.
      2.     Serious Citation 1, item 2 alleging a violation of 29 CFR 1926.651(j)(1) is
             VACATED.




                                                     Robert A. Yetman
                                                     Judge, OSHRC

Dated: April 14, 2000